Five Facts on Presidential Executive Orders

The Big InsightThe increasing use and abuse of presidential executive orders defies the constitutional power of Congress and results in radical, partisan shifts in federal policy.

Presidential executive orders date back to George Washington. But in our polarized times, they are increasingly used by presidents to set major policy — sometimes against the explicit position of a majority in the Congress — in an abuse of executive power. The overuse of executive orders also results in jarring shifts in national direction when a new president uses the power of the office for sudden and radical course redirections.

1. There is no direct constitutional provision allowing for the use of executive orders.

Presidential executive orders date back to George Washington. But in our polarized times, they are increasingly used by presidents to set major policy — sometimes against the explicit position of a majority in the Congress — in an abuse of executive power. The overuse of executive orders also results in jarring shifts in national direction when a new president uses the power of the office for sudden and radical course redirections.

Presidents justify the use of executive orders by citing Article II, Section 1, Clause 1 of the Constitution, which states, “The executive Power shall be vested in a President of the United States of America.” The very first executive order was issued by George Washington just six weeks into his presidency, an uncontroversial measure instructing the heads of federal departments “to impress me with a full, precise, and distinct general idea of the affairs of the United States” in their respective fields.

Since the earliest executive orders clearly dealt with the administration of the Executive Branch, they faced no real challenges. But as presidents began to use the power to set policy, the courts were increasingly called upon to rule on their constitutionality. The 1952 Supreme Court decision in Youngstown Sheet & Tube Co. v. Sawyer set the current standard for determining whether an executive order may stand. In addition to facing the same standard of constitutionality as any law passed by Congress, an executive order is permissible when the president “acts pursuant to an express or implied authorization of Congress” and when the president “acts in absence of either a congressional grant or denial of authority,” but not when the president “takes measures incompatible with the expressed or implied will of Congress.” In practice, presidents have often pushed the outer edges of this envelope — and beyond.

2. Presidents have issued more than 14,000 executive orders, with the frequency growing in recent decades.

While every president except William Henry Harrison — who was in office for just one month — issued executive orders, no president before the end of the Civil War issued more than 50. By contrast, only two presidents since the start of the 20th century (Gerald Ford and George H.W. Bush) issued fewer than 200 by the end of their terms. (President Biden issued 80 executive orders in his first 16 months in office.)

3. Executive orders have been used to end slavery in territories in rebellion, to nationalize industry, and even to inter citizens.

As the number of executive orders has grown, so has the use of the power to do big or controversial things. Abraham Lincoln’s 1862 Emancipation Proclamation, freeing slaves in Confederate-held territory, was an executive order, as was Truman’s placing of all U.S. steel mills under federal control 90 years later.

Franklin Roosevelt — who issued a full one-quarter of all executive orders in the nation’s history — used the power to declare a bank holiday; to create the National Labor Relations Board, the National Recovery Review Board, and the Export-Import Bank of the United States and other agencies; and to order the internment of Japanese-Americans during World War II.

4. President Obama set a record for executive orders and related actions in his first week in office — a record broken by President Trump eight years later.

Barack Obama issued 13 executive orders or similar actions within his first seven days as president; Donald Trump issued 14.

Obama explicitly and repeatedly stated that he would use executive orders to implement his agenda without legislative buy-in — sometimes going directly against the will of Congress.

While a Gallup poll at the end of January 2009 found that just 22% of Americans thought Obama was moving “too fast,” a poll at the end of January 2017 found that 47% said the same of Trump.

5. President Biden revoked 39 of his predecessors’ executive orders in his first 100 days in office. In the past half-century, only President Reagan revoked more than nine.

Executive orders remain in place until the sitting president removes them or federal courts overturn them, as they did in the case of Truman’s steel mill action. With executive orders increasingly used as a tool to set policy, radical shifts in direction are taking place as new presidents sign fresh executive orders, and toss out those of their predecessors.

Despite Trump’s frequent criticism of Obama’s executive orders, he only actually revoked eight of them in his first 100 days. Most recent presidents revoked just a handful; Ronald Reagan revoked 18. But Biden revoked a full 39 in his first months in office.

No Labels is an organization of Democrats, Republicans, and independents working to bring American leaders together to solve problems.

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